- The Washington Times - Monday, February 17, 2003

WASHINGTON, Feb. 17 (UPI) — The American Civil Liberties Union says a proposed law would infringe on basic liberties and erode checks and balances on presidential power.

The new law, called Patriot II, which has been reportedly proposed by the Department of Justice, seeks to strengthen America's security against possible terrorist attacks.

A posting on the ACLU Web site Monday said the proposed law goes further than the U.S. Patriot Act, adopted after the Sept. 11, 2001, terrorist attacks, "in eroding checks and balances on presidential power and contains a number of measures that are of questionable effectiveness, but are sure to infringe on civil liberties."

The Justice Department is refusing to comment on the drafted bill which was first leaked by the Washington-based Center for Public Integrity. When contacted by United Press International, a spokesman for the Justice Department said it's too early to comment on a report which has not yet been officially released.

The Center for Public Integrity says it obtained a draft, dated Jan. 9, of this previously undisclosed legislation, and is making it available in full text. The bill, drafted by the staff of Attorney General John Ashcroft and entitled the Domestic Security Enhancement Act of 2003, has not been officially released by the Department of Justice, although rumors of its development have circulated around Washington for the past few months under the name of "the Patriot Act II," in legislative parlance.

After the center posted this story, Barbara Comstock, director of public affairs for the Justice Department, released a statement saying: "Department staff have not presented any final proposals to either the attorney general or the White House. It would be premature to speculate on any future decisions, particularly ideas or proposals that are still being discussed at staff levels."

Mark Corallo, deputy director of Justice's Office of Public Affairs, told the center his office was unaware of the draft. "I have heard people talking about revising the Patriot Act, we are looking to work on things the way we would do with any law," he said. "We may work to make modifications to protect Americans," he added. When told that the center had a copy of the draft legislation, he said, "This is all news to me. I have never heard of this."

"We haven't heard anything from the Justice Department on updating the Patriot Act," House Judiciary Committee spokesman Jeff Lungren told the center. "They haven't shared their thoughts on that. Obviously, we'd be interested, but we haven't heard anything at this point." Senior members of the Senate Judiciary Committee minority staff have inquired about Patriot II for months and have been told as recently as this week that there is no such legislation being planned.

ACLU legislative counsel Timothy H. Edgar says the proposal threatens to fundamentally alter the constitutional protections that allow citizens "to be both safe and free."

If it becomes law, he said, it would encourage police spying on political and religious activities, allow the government to wiretap without going to court, and dramatically expand the death penalty under an overbroad definition of terrorism.

The ACLU says Section 501 of the Justice Department bill would allow the government to strip citizenship from any American who provides support for a group designated by the federal government as a "terrorist organization."

Significantly, the USA Patriot Act broadened the definition of groups that could be so designated to potentially include domestic protest organizations such as Operation Rescue or People for the Ethical Treatment of Animals, the ACLU said.

Other provisions in the bill include permitting wiretapping of Americans for 15 days (Sections 103, 104) without a declaration of war by Congress if the executive branch decides unilaterally that a potential attack has created an emergency. It would be the sole discretion of the attorney general to allow the wiretapping and would not need a court order to authorize it.

While the Justice Department would have to check in with a judge after the 15 days, the information gleaned during that period could still be retained and used against an American citizen, the ACLU said.

The draft legislation also proposes statutory authority for secret detentions and the termination of court-approved limits on police spying.

"These provisions are only a sampling of the civil liberties concerns in the attorney general's proposal," the ACLU said.

The ACLU believes that the bill, if signed into law, would:

— Make it easier for the government to initiate surveillance and wiretapping of U.S. citizens under the shadowy, top-secret Foreign Intelligence Surveillance Court (Sections 101, 102 and 107).

— Shelter federal agents engaged in illegal surveillance without a court order from criminal prosecution if they are following orders of high executive branch officials (Section 106).

— Authorize, in statute, the Department of Justice's campaign of secret detentions by including a provision that would pre-empt federal litigation challenging non-disclosure of basic information about detainees (Section 201).

— Threaten public health by severely restricting access to crucial information about environmental health risks posed by facilities that use dangerous chemicals (Section 202).

— Harm Americans' ability to receive a fair trial by limiting defense attorneys from challenging the use of secret evidence (Section 204).

— Reduce the ability of grand jury witnesses in terrorism investigations to defend themselves against public accusations by gagging them from discussing their testimony with the media or the general public (Section 206).

— Allow for the sampling and cataloguing of innocent Americans' genetic information without court order and without consent (Sections 301-306).

— Permit, without any connection to anti-terrorism efforts, sensitive personal information about U.S. citizens to be shared with local and state law enforcement (Section 311).

— Undercut trust between police departments and immigrant communities by opening sensitive visa files to local police for the enforcement of complex immigration laws (Section 311).

— Terminate court-approved limits on police spying, which were initially put in place to prevent McCarthy-style law enforcement persecution based on political or religious affiliation (Section 312).

— Provide an incentive for a neighbor to spy on neighbor and pose problems similar to those inherent in Ashcroft's "Operation TIPS" by granting blanket immunity to businesses that phone in false terrorism tips, even if their actions are taken with reckless disregard for the truth (Section 313).

— Further criminalize associations — without any intent to commit acts of terrorism — with unpopular organizations labeled as terrorist by the U.S. government (Section 402).

— Under the pretext of fighting terrorism, unfairly target undocumented workers with extended jail terms for common immigration offenses (Section 502).

— Provide for summary deportations without evidence of crime or criminal intent, even of lawful permanent residents, whom the attorney general says are a threat to national security (Section 503).

— Abolish fair hearings for lawful permanent residents convicted of criminal offenses through an "expedited removal" procedure, and prevent any court from questioning the government's unlawful actions by explicitly exempting these cases from habeas corpus. Congress has not exempted any person from habeas corpus — a protection guaranteed by the Constitution — since the Civil War (Section 504).

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